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.”
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.
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.
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.
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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