Introduction

An extraordinary leak of a draft decision from the US Supreme Court strongly suggests that the majority of the court is leaning towards overruling its landmark precedent in Roe v Wade.  This has caused a great deal of public excitement.  

Before we get into the legal issues, let’s dispense with the politics.  Someone who is militantly either “pro-choice” or “pro-life” may try to distort what I am saying in this post to suit their advocacy, even though this blog post does not take any position on the abortion issue.  However, the only purpose of this post it is to help my readers to understand better the context in which this judicial decision will be made, based on the question now before the court.  For an insightful analysis of these issues I recommend David French’s Atlantic article.

Contrary to popular misconception, as David French explains, the question before the court is not “Should women have the right to abortion?” but rather, “Does the US constitution create certain abortion rights?”  Failing to recognize the distinction between the “ought” and the “is” would leave us unable to understand the court’s job, and to judge whether it is doing its job properly.

While the political party of the president who appointed each of the judges cannot be ignored, we should be cautious not to assume that everything is explained by partisan politics. Different principles of constitutional interpretation and differing views of the role of the judiciary can also influence the outcome.

The 1973 Roe decision interpreted the U.S. constitution as having an implied privacy right, which included a right to have an abortion without government interference, at least in the first trimester of pregnancy.  However, in 1992, in Planned Parenthood v Casey, the court, while saying that it was upholding Roe, actually narrowed it. It changed Roe’s constitutional basis from “privacy” to “liberty”, but also expanded the scope for government control, provided that the governments did not create substantial and unduly onerous impediments to abortion.  What is an acceptable versus unacceptable impediment has, since Casey, been the subject of much litigation.  For a fair, brief description of the arguments and outcomes in Roe and Casey I recommend viewing this: https://www.youtube.com/watch?v=cz5tlPnGUOs

Assuming that the final decision of the Supreme Court will be substantially the same as the leaked draft, what might happen next?

That depends in part on the grounds on which the court overrules Roe, and what, if anything, the court replaces it with.  As well, in the short term, that depends on what various US state legislatures do or do not do, and what Congress does, in response to the overruling of Roe.  In the longer term, however, judicial decisions on abortion will also depend on the facts in future cases, and future appointments to the Supreme Court.  In any event, there will continue to be sharp controversy, unless a new post-Roe compromise is found that most Americans can live with.

A Thought Experiment About Compromise

I was a law student in 1971, while Roe was working its way up the judicial ladder.  One of our professors suggested an interesting thought experiment about the legitimacy of abortion law in a divided society.

Assume a country in which exactly 50 percent of the population is in favour of permitting abortions and exactly 50 percent is opposed to it.  What should the abortion law be in such a country in order to be legitimate?  Somewhat mischievously, the professor suggested that the right answer would be to alternate, by allowing abortions one week and prohibiting abortions the next week. 

The class laughed, recognizing the absurdity of this “solution”.  The conclusion?  In an equally divided society with an all or nothing binary choice there was simply no way to enact a law that would be fair to all, or even to the majority of the population. 

Now let’s assume the same country is split 60/40.  Would it be legitimate to say that, whatever its position on abortion, the 60 percent majority should rule?  If majority rule was the only applicable principle, the answer would be yes.  But there is more.  One of the principles of American democracy, like democracies elsewhere, has been to try to prevent the tyranny of the majority through constitutional guarantees of individual rights, which would overrule any legislation that infringes those rights.  However, courts cannot overrule legislation if the individual rights asserted are not found in the constitution.  And the US constitution, created centuries ago, doesn’t specifically mention abortion anywhere. 

The Two Ways Of Interpreting Constitutions

To establish a right to abortion today (with whatever limitations for fetal viability) would require either (i) a constitutional amendment to add a right to abortion, or (ii) an interpretation of the existing constitution that found this right to abortion to be implied by other constitutional language.  In Roe, the court “found” it to be included in the right to privacy, a rather large leap because the word “privacy” itself is not found in either the U.S. constitution or its amendments.  Finding such an unwritten right through finding “privacy” has been part of the controversy over Roe. Here’s why.

There are two generic ways of adjudicating constitutional issues: strict/literal construction and contextual/purposive interpretation.  Sometimes the same judicial decision will include elements of both.  How much of which method is used will often explain the result.

The Strict Construction View

A strict construction approach would conclude that absent specific language in the constitution granting a right, that right is not constitutionally protected.  The draft Supreme Court decision overruling Roe emphasizes that the constitution says what it says, not what some might wish it to say. 

If a democratic country doesn’t like the constitution as written, a strict constructionist would say that the constitution should be amended through the established amendment process.  Judges cannot give themselves the right to amend the constitution by calling it their “interpretation”.

Strict construction is often criticized because it is very difficult to amend the constitution, even one that has, in some respects, revealed its gaps through the passage of time.  It is therefore possible for strict constructionists to defeat the very purpose of the constitution by insisting on a purely semantic analysis.

The Contextual/Purposive Interpretation View

The other judicial approach holds that the constitution should not be seen as written in stone. The task of the court, on this view, is to try to understand the purpose of the constitutional provision in issue, and to try to give it a modern interpretation that achieves its intended purpose.  This gives the judges greater latitude than the strict construction approach. But it also poses the risk that creative interpretations based on currently popular political views will be imposed by hanging them on a judicially invented constitutional hook.  This creative approach may also have reduced respect for precedents. 

Even judges who generally favour this purposive approach will sometimes be critical of judges who they see as taking excessive liberties with interpretation.  For example, the late Justice Ruth Bader Ginsburg, an ardent, lifelong feminist, was critical of the Roe decision despite approving its result, because (i) the court used wrong, highly vulnerable constitutional reasoning and (ii) its decision went much further than necessary in overruling the Texas law. 

Like other courts, the US Supreme Court is divided on which of these well-established approaches to constitutional interpretation should be applied in particular cases.

Courts, Legislatures and Constitutions

If the draft Supreme Court decision becomes final and overrules Roe it would permit a wide variation among state abortion laws, some strongly in favour, some strongly opposed.  In effect, the court would be deciding that in the absence of a constitutional right, abortion is not a constitutional issue.  It is a political question, to be determined first at the legislative level, and then at the ballot box, but not at the courthouse. 

Turning the issue over to the legislatures will be criticized.  Yes, it is the job of elected representatives and not judges to enact the laws.  However, to protect citizens from the tyranny of the majority there are constitutional limits on what legislatures can legislate.  Governments cannot be trusted to decide for themselves whether their own legislation falls within or outside constitutional limits.  Only the courts can do that.  Viewed this way, the courts are not making law in the same way as legislatures, they are reviewing legislation for constitutional compliance.  That is the exclusive right of the judiciary in a democracy.  It is therefore wrong for a court to refuse to do its job by tossing the problem back to the legislature.

In response to such criticism it will be argued that the role of the court is to interpret the constitution the way the constitution is written, not to read into it language that is not there, by so-called implication.  If the authors of the constitution had intended to protect some right or other they would have said so in the constitution. Therefore, if the country has not amended the constitution it should stay as it is.  Activist judges assuming the power to read new rights into the constitution would be usurping the role of the legislature.

These different positions on the role of the judiciary in applying versus interpreting the constitution have long-standing traditions of support.  Therefore, it would be opportunistic for journalists and politicians to insist upon one or the other judicial approach when it leads to the result they like, but to demand the opposite approach in another case if that gets result they like. 

Complicating the analysis, however, is that Roe has settled the law for five decades, and the arguments now made against it have been repeatedly rejected.  This brings us to the role of precedent.

Roe Has Been the Law for Half a Century

An argument from precedent, like so many other legal arguments, is a two edged sword.

In support of treating precedents as binding, it is said that if a court does not respect its own judgements enough to follow them, who will?  Also there is the need for stability and predictability.  Any Supreme Court decision in force for decades will have created extensive reliance upon it.  Numerous statutes will have been based on it, as will numerous judicial decisions.  The citizenry will have invested time and money to create institutions to build upon, or to mitigate, the impact of the decision.  It is, arguably, unfair and unreasonably disruptive to interfere with long-standing precedent.

On the other edge of the sword, just because a decision is old doesn’t mean it is good.  A decision that has been wrong for half a century has been harmful for half a century, and cries out for harm reduction.

At bottom, the argument for or against treating a precedent as continuing to be binding depends upon whether the court considers the result of overruling it to be better or worse than the result of retaining it.

Does the US have Two Constitutions?

The US has a unique tradition of vigorous partisan disputes in reviewing proposed presidential appointments to the Supreme Court.  The appointment depends on which political party has enough votes to approve or reject a presidential nominee.  At times the US Supreme Court has been dominated by Republican appointees, and at other times, by Democrat appointees. This has sometimes led to differing interpretations of the same constitution by Republican and Democrat dominated courts.  There might be some truth in saying that the US has two constitutions, with different outcomes in particular cases, depending on which party’s appointees formed the court’s majority.  However, the current Republican majority on the Supreme Court is not permanent, so its constitutional decisions may well be overruled by a future Democrat majority court.

The Limits of Constitutions

Students in US schools are taught to be proud of the US constitution.  However, constitutional protections have limited effectiveness, as was seen for decades during which the US Supreme Court accepted that slavery and racial segregation were not unconstitutional.

The Soviet Union had a wonderful constitutional rights guarantees but did not prevent Stalin from killing millions of Russians and Ukrainians, including through starvation.  It did not prevent gulags or disappearances and assassinations by the secret police. 

The modern Russian constitution, published here, provides that political diversity and the multi-party system shall be recognized in the Russian Federation. Nevertheless, that has not prevented Mr. Putin from running the country as a one-party state, while his opponents have been imprisoned or victims of attempted or successful assassinations.

Even in constitutional democracies like the US and Canada, it would be naïve to expect too much from constitutions.  The political consensus in a country, the extent of its shared values and the attitudes of the judiciary, not the constitutional wording, will determine its effectiveness in preventing tyranny, whether of the majority or the minority. 

Why are Rights Limited?

Everyone talks about, and assumes that they have various rights, simply because they believe they ought to have them.  But wishful thinking doesn’t create enforceable rights.  Every such right must have a clear legal or constitutional basis. 

If you claim a right to something and no one disputes your claim you can enjoy that right.  However, if someone denies your claimed right, or does something that infringes it, then you either give up the right or find a means of protecting or enforcing it.  Typically, you would have to bring a court case or file a complaint before a regulatory body such as a human rights commission.  But the result will often be uncertain.  That is because (i) rights (such as the right to liberty) have numerous potential meanings and unspecified limits, and (ii) legislatures have created ‘rights inflation’ by legislating more rights than can be exercised without conflict.  A clear example today is the conflict between self-identified trans women and some feminists, who oppose some trans women’s claims to the right to use women’s washrooms, or to be admitted to battered women’s shelters or to compete in women’s sports.  Yet both parties to these conflicts have been given these conflicting rights. When rights collide someone else must decide which rights shall prevail, and to what extent. 

Conclusion

If the US Supreme Court overrules Roe v Wade, the decision will have a massive impact.  Some of that impact is predictable: different states will enact laws that either severely limit, or actively facilitate, access to medically safe abortions.  However, as the composition of the Supreme Court evolves, the long-term result may evolve in a different direction.

The lesson to be learned is that if there is ever to be peace on this highly divisive issue it can only be through an acceptable compromise rather than a succession of alternating victories.  A good compromise is better than a bad victory.  But a good compromise will require something better than allowing and prohibiting abortions on alternate weeks.  And soon, it may require something better than Roe v Wade.