30 June 2022
Reversing Roe v Wade
Constitutional constipation.
By John Watson
In the emotion surrounding the Supreme Court’s reversing of Roe v Wade it is easy to forget what the litigation is all about. Sure, its effect will be that certain states, now free to make their own policy on the issue, will restrict the right to terminations and much suffering is likely to flow from that. The task for the Court, however, was not to decide whether or not that was acceptable in today’s America but rather to decide whether the setting of policy on abortion is a matter for the federal government or for individual states.
America has a written constitution which sets out a number of rules to which all states have to adhere. If those rules do not cover a particular area, the states may set their own policies. If an area is governed by the constitution then the states are constrained. In the lead judgement Justice Alito set out his view thus:
“The constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the constitution, but any such right must be “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty””.
He went on to say that it was the role of the Court to interpret the constitution and not to consider the consequences. Viewed from this perspective, Roe v Wade usurped the democratic process; in other words if Americans want the constitution to bar anti-abortion legislation by the states, they should amend the constitution. His view of the judgement in Roe was not complimentary:
“Wielding nothing but ‘raw judicial power,’ the court usurped the power to address a question of profound moral and social importance that the constitution unequivocally leaves for the people . . .”, meaning by those final words “unequivocally leaves for the states.”
Not being an expert on American law I have no idea whether this is sound or not although rather spookily those justices known to be ‘liberal’ all took a different view. It seems odd to us in the UK that the answer to a technical question should differ with the politics of the individual judge but no doubt that reflects the difference in American politics between those who believe the centre should aggregate power and conservatives who think that it should only have the power specifically given to it.
The question of whether power should be exercised from the centre or locally is one of the central issues of politics. The modern trend is to devolve and in the UK Westminster has delegated many of its powers not just to Scotland, Wales and Northern Ireland but to local authorities as well. The general theory here is that the closer decision-making is to the people the better. The difficulties begin when the people exercise their power in a way which the central authority regards as unacceptable. Then those powers have to be taken back. Older readers will remember Mrs Thatcher abolishing the GLC because its antics threatened to jeopardise government policy. If the Northern Ireland assembly remains in deadlock, power has to go back to Westminster. Devolved powers can be taken back when things go wrong. It is more difficult in the States where powers were not devolved but never belonged to the centre in the first place. To reverse the Supreme Court’s ruling reversing Roe v Wade would take an amendment to the constitution.
In the present acrid state of American politics this seems unlikely. An amendment to the constitution has to be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. Then it has to be ratified by three fourths of the states. That means that the democratic way of protecting women’s rights is effectively blocked. To the Briton, used to a system where the party in power has unlimited authority, this seems strange indeed but then we do not have a founding document designed to restrict government power. In the US they have and alas it works only too well.
The difficulty of changing the constitution is not just a problem because of the things left out of it but also because of the things included in it. Over to New York State, where a 108 year old law restricting who can carry concealed guns has recently been struck down as infringing the constitutional right to bear arms despite an 80% support level among the public. Here again we have progression blocked by fixed rules which it is almost impossible to change, democracy locked out by antiquated legislation.
It is easy for us in London to snort derisively at the Supreme Court as being political but look again at the basis of the abortion ruling mentioned above. The position of the justices seems to be that they should interpret the constitution rather than worry about public opinion and consequences which are matters for democracy not for courts; that means behaving more like a court rather than less. If similar issues came up in relation to an English statute, our courts would see it as their role to interpret the law and leave it to Parliament to make any necessary change to bring the law into line with public opinion. That is what we regard as the democratic process. The problem with the US system is that they have the first part of the process and not in practice the second.
The US Constitution is the child of particular political circumstances and the checks and balances are designed to limit the power of the executive to impose arbitrary government. No doubt in the late eighteenth century it was just what they needed, but the world has moved on and it now blocks democracy in a way which, at least in Europe, we would find unacceptable. With its move to a more legalistic approach, the US Supreme Court will increasingly expose the extent to which constitutional change lags public opinion and may push matters towards constitutional reform. Meanwhile, to see the flagbearer of Western democracy in this sort of mess is sad indeed.
tile photo: Heidi Kaden on Unsplash
