Personal liberty itself has been circumscribed.
The odd thing about the recent ruling by the US Supreme Court on the constitutional right of women to abortion is that it had to happen at all. Whether or not the right to abortion is protected in the US constitution, it is striking that it is not protected in federal law.
In its last ruling on abortion rights, in 1973, the Court said that a woman’s right to an abortion was part of her right to freedom, as guaranteed by the 14th Amendment, one of three amendments added during Post-Civil War Reconstruction. The recent ruling says that it is not part of that freedom. when the Court ruled in 1973, public opinion in many rich democracies was swinging strongly in the direction of fewer restrictions as well as better access to contraception. That coincided with a big increase in women’s participation in the workforce and, perhaps not uncoincidentally, sustained economic growth.
Meanwhile, similar cases seeking better access to affordable abortion were being brought in many of those places. As courts progressively ruled in women’s favour, governments tended to follow up with laws establishing a legal right to abortion. Yet only now has President Joe Biden promised to enact similar federal legislation to restore women’s rights.
This latest ruling does not, in itself, ban abortion, it simply removes the constitutional right to one. Federal and state legislatures can either allow abortion in their jurisdictions or not. If their decision goes against the grain of public opinion, their voters can, in theory at least, replace them at the next election with law-makers who enact laws that accord with their preferences. Whether or not that happens in America is the subject of a separate debate about how well or otherwise its electoral laws and infrastructure reflect the wishes of the electoral majority.
Surveys repeatedly show that most Americans, in common with majorities in most developed democracies, favour abortion choice, albeit mostly with some restrictions. A recent survey by YouGov shows that only 9% would ban it altogether.
Now, and until that majority can impose its will in American ballot boxes, thousands of unwanted children will be born, young lives ruined or ended agonisingly as a result of botched, clandestine abortions. The only people to benefit are those who pocket fat fees for carrying out those clandestine, sometimes botched abortions.
A small consolation might be that at least one important decision on fundamental human rights has returned from biddable judges to accountable law-makers. The worry is that too many other fundamental rights can still be decided by an unrepresentative and politically interested few. A more positive sign would have been for the Court to pronounce that it is not within its domain to rule on abortion rights, but the sole purview of elected representatives.
It doesn’t help that the Court itself seems very confused: on the one hand, Justice Alito stated that “…we emphasise that our decision concerns the constitutional right to abortion and no other right…” Justice Thomas then seemed to contradict that “…the legal rationale for Friday’s decision could be applied to overturn other major cases, including those that legalised gay marriage, barred the criminalisation of consensual homosexual conduct, and protected the rights of married people to have access to contraception….” The precedents for which, he declared “demonstrably erroneous…”
Given America’s strong reliance on its courts, this is hair-raising for anyone who cares about any kind of human right, especially those that affect women or minorities disproportionaltely. So long as the Court claims such competences, other human rights not explicitly mentioned in the Constitution can be stripped away, for example by a future court with its own political agenda.
In this ruling, the Supreme Court has removed not only the right to abortion, but opened the way to removing other human rights too – including the right not to abort a foetus just because someone else thinks you should.
Featured image by Karolina Grabowska on Pexels.