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.