Category: Abortion and the law

My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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Should the “Bill of Rights” make provision for the right to an abortion?

29th June 2022

At Prime Minister’s questions today, the Lord Chancellor – deputising for the Prime Minister – was asked if the right to an abortion should be placed in the “Bill of Rights” currently before parliament.

He responded:

“…the position on abortion is settled in UK law and it is decided by hon. Members across the House.  It is an issue of conscience, and I do not think there is a strong case for change.  With the greatest respect, I would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House.”

Is he right?

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In respect of abortions, the Labour MP Stella Creasy recently tweeted:

And, after the Lord Chancellor’s comments today, she tweeted the following:

Does she have a point?

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I happen to be strongly in favour of a woman’s right to choose to have an abortion – but the question here is not about the ultimate rights and wrongs of the abortion issue.

It is about whether the “Bill of Rights” should be put to this use.

From the Lord Chancellor’s perspective, the abortion issue is “settled” – at least in England and Wales – and here he presumably means the Abortion Act 1967.

And to the extent that abortion was legalised in England and Wales by an Act of Parliament, rather than by a (contentious) Supreme Court decision as it was in the United States, the Lord Chancellor has a little bit of a point about it having been determined by parliament, and not by the courts.

But it is not much of a point.

In part, the issue is not politically “settled” – and as recently as 2008 MPs were substantially divided as to the term limits for abortions.

And as Creasy avers, the position in Northern Ireland was not legally changed until very recently (with her astute and deft amendment to the Northern Ireland (Executive Formation etc) Act 2019):

And so, thanks to that amendment, there are now the Abortion (Northern Ireland) Regulations 2020.

Of course, making access to abortions legal is not the same as providing practical access to abortions, as many on Twitter pointed out in response to Creasy’s first tweet.

And some may say there is not much point providing legal access in Northern Ireland but not practical access:

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The “Bill of Rights” issue is not whether the substantive law on abortion should be changed – the substantive legal position has been changed.

The issue is whether a general right to an abortion should be placed in the “Bill of Rights”.

Here the position is less straightforward

On one hand, this blog has repeatedly warned of the folly of “enshrining” things in law.

This is because nothing can be meaningfully “enshrined” in law – as amendment or repeal is only a parliamentary exercise away.

And the “Bill of Rights” already has provisions that are legally meaningless – there is, for example, a proposed right to a trial by jury which goes no further than saying that if you already have a right to a trial by jury then you have a right to a trial by jury.

But.

If we are going to have a “Bill of Rights” then there is an argument that it should, well, contain some rights – and perhaps rights which have not been articulated plainly in other statutes.

And the Lord Chancellor’s objection that including such a right in the “Bill of Rights” would mean “the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House” makes no sense.

A statement of a general right in the “Bill of Rights” would not, by itself, lead to any more litigation than there would be already under the current legislation.

The United Kingdom would not suddenly become the United States just by adding this right to the “Bill of Rights”.

Indeed, providing the right in primary legislation is pretty much the opposite of what has happened in the United States.

The real reason, one suspects, for the opposition of the Lord Chancellor and other government ministers, is that the “Bill of Rights” is not for this sort of rights.

The right to an abortion is the wrong sort of right for what they are seeking to do with the “Bill of Rights”.

It is not intended that the legislation will actually confer new rights – despite its portentous title.

The intention is that the legislation will make it more difficult for people to practically rely on their rights.

So, although one can doubt the efficacy of “enshrining” things in domestic law, Creasy’s proposed amendment perhaps serves a helpful purpose in exposing the “Bill of Rights” as not being about rights at all.

And if such a right is included in the “Bill of Rights” then it may lead to the issue being more “settled” than the 2008 debates and the Northern Ireland experience indicates it to be.

If we are to have a “Bill of Rights” then this is presumably the sort of right – highly relevant to actual people – that should be included.

But what do you think?

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Fundamental rights vs legal rights vs constitutional rights – the case of abortion and the United States Supreme Court

4th May 2022

Those with too much interest in law or politics will talk about different sorts or rights – fundamental rights, legal rights, constitutional rights, and so on.

Some of those people will even know what they mean by each of these (similar) terms.

Others, however, may find the feast of terms confusing.

This post is for those who want to better understand such terms.

And for the purpose of exposition, I will take the topical issue of abortion in the United States (which this blog covered yesterday)

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First, what is a ‘right’?

A right is the absolute ability to elect to do something in a given situation.

If that ability can be withdrawn by another, then it is better understood as a privilege, and not as a right.

If you need to obtain the prior consent of another before exercising that ability then it is not a right but a permission.

What makes it a right is that no prior permission is required and it cannot (easily) be withdrawn.

Sometimes these rights are expressly articulated and set out in a formal code.

And sometimes they arise by implication because of a certain legal state of affairs.

The right to an abortion under Roe v Wade in the United States is an example of the latter.

The Supreme Court held that it would be unconstitutional for there to be certain legal prohibitions on abortion.

This rested on a right to privacy, which is not expressly stated in the constitution, but was implied into the constitution by the court.

The right to abortion therefore is the implication of it being unconstitutional for there to be certain legal prohibitions in respect of people’s private lives.

And because Roe v Wade was decided by the Supreme Court on the basis of what was constitutional, the right is a ‘constitutional right’ .

This means that it is not open to Congress (on a federal level) or individual states to interfere with the right.

A lower level of right would be a legal right – for example, a right to an abortion as provided for in laws made by Congress or an individual state.

But such legal rights are subject to the constitution, and so if they do not conform with the constitution then they can be quashed.

This means that, if the Supreme Court holds that it is a matter for individual states to regulate access to abortions, but Congress purports to enact a nation-wide right to abortion, such a legal right may be struck down by the Supreme Court.

(Legal rights are useful, but constitutional rights are stronger.)

A third category of rights are ‘fundamental’ or ‘natural’ rights – these are rights which exist (or should) exist, independent of whether they are posited by the legal system.

Sometimes these rights correspond with constitutional or legal rights, sometimes they do not.

From a liberal perspective (the perspective of this blog), the right of a woman to elect to have an abortion is a fundamental right.

The principle is that – in general – it is for the woman to decide, and not a legislature.

(And if a legislator or voter is opposed to abortion, then they are free to not have one – but it should not be an absolute rule imposed on another.)

This general principle is subject to a limitation of there being a point in a pregnancy after which no abortion should be normally be performed – and views will differ on when that limit is.

But the fact that views will differ as to when that limit is does not mean that there should not be a general right to elect to have an abortion before that limit.

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If the Supreme Court do remove the constitutional status of the implicit right to an abortion then it may still be a legal right in some states, and it still will be a fundamental right, even if an ineffective fundamental right in other states.

If the Supreme Court overrules Roe v Wade, the only other way to return the right to an abortion to being a constitutional right – and thereby exercisable in every American state is for the constitution to be amended.

That would then put it beyond the grasp of an illiberal Supreme Court and any illiberal Congress.

But until and unless that happens, you have a fundamental right which may be a legal right in some states and not others, but is not a constitutional right.

And that – well – would not be right.

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Why the ‘leaked’ Alito opinion will be especially worrying to supporters of a constitutional right to an abortion

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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Abortion, law and policy – why there needs to be a constitutional amendment

2nd December 2021

The abortion issue is about one ultimate question: who gets to choose?

Is it those who are pregnant?

Or is it those who have control of a legislature or the courtrooms?

From a liberal perspective, the answer is simple.

As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.

This is because of the principle of autonomy.

But many do not want women to have that choice: they believe it is a choice for others to make, who do not know the woman or her circumstances.

Answering this ultimate question, however, is not enough.

For there is a further question: how should the right of someone to control their own pregnancy be enforced?

In the United States, the Supreme Court in Roe v Wade held that there was a ‘constitutional right’ to an abortion.

The problem with this is that the constitution of the United States does not expressly provide such a right.

It instead has to be read into the constitution by the courts.

And what a court can give, another court can take away.

Another problem is that the reasoning in Roe v Wade is not that compelling – even it arrives at the (morally) right conclusion.

So there is now a case before the Supreme Court where there is a very real chance that Roe v Wade will be severely limited, if not overturned.

This would be an illiberal and unfortunate outcome.

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For nearly fifty years, however, the effect of Roe v Wade has not been converted into an actual constitutional amendment, so as to put the ‘constitutional right’ beyond doubt.

And those opposed to abortion have, step by step, judicial appointment by judicial appointment, increasingly positioned themselves to overturn the decision.

It has been skilfully, deftly done – and in plain sight.

The judicial appointments under presidency of Donald Trump has made the shift irreversible for at least generation.

The only liberal way forward is not to litigate, but to legislate.

The ‘constitutional right’ of a woman to, as far as possible, decide the outcome of her own pregnancy is too important to rest on a flimsy Supreme Court decision, with poor reasoning and relying on a right not expressly set out in the constitution.

And if and when the constitution expressly sets out the right, then the decision as to who gets to decide whether to terminate a pregnancy will be, as afar as possible, back with who it should be.

The mother herself.

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What codification of Roe v Wade means and why President Biden is right to support it

23rd January 2021

Yesterday the twitter account of the new president of the United States tweeted about abortion rights:

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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