11 July 2018

Abortion law should not be made by judges 

The Tablet

US Supreme Court nominee

The famous opening line to L P Hartley’s novel The Go-Between – “The past is a foreign country; they do things differently there” – could equally apply to the United States of America, especially where abortion legislation is concerned. The rest of the world will be somewhat bemused as President Donald Trump’s nomination of Brett Kavanaugh to fill an impending vacancy on the US Supreme Court is minutely scrutinised in Congress and across the media with the focus on one issue. Is he or is he not likely to favour the overturning of the Roe v. Wade Supreme Court judgment of 1973?
Polls suggest that Mr Trump’s announced intention if elected to appoint conservative judges to the Supreme Court, with Roe v. Wade to the fore, won him the presidency because of its strong appeal to Catholic and Evangelical electors. Other Republican presidents have used the same tactics. Even so, nobody knows what Judge Kavanaugh thinks about this; nor is he about to say. There are some conservative judges for whom Roe v. Wade is “settled law” which cannot be overturned, and he may be among them.

This politicisation of the Supreme Court, with each of its nine justices branded in the public mind as either conservative or liberal, is good neither for respect for the law nor for democracy. This may be why no other country has followed the United States down this road. Indeed, the route by which the US itself travelled to reach Roe v. Wade was very peculiar.
One of two dissenting judges in the 1973 case, William Rehnquist, rightly said the majority on the court were engaged in legislating, which was not their job. It is a fact that the vast majority of countries deal with key issues concerning abortion by parliamentary legislation, not judicial rulings. And that may be why abortion has become such an obsessive element in the so-called culture wars that divide American society.
In summary, the Roe v. Wade majority argued that the Fourteenth Amendment to the US Constitution, passed in 1868, granted a right to privacy, even though that was manifestly nowhere near the drafters’ intention. This was their interpretation of the phrase “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The intention of the amendment had been to prevent former Confederate States from treating newly emancipated black slaves as second class citizens, under the so-called Black Codes. Still, the Roe v. Wade majority went on to stretch this assumed right of privacy into a right to abortion, at least in the first trimester of pregnancy. This struck down existing laws passed in state legislatures such as in Texas, that severely restricted access to abortion.
Privacy is an explicit right upheld under the European Convention on Human Rights Article 8, which applies to all 47 member countries of the Council of Europe. But the European Court of Human Rights has never stretched the right of privacy to include abortion. It is left to the democratic decision-making of each country. And that is where it belongs.