Category: Judges

­­­The Abortion Debate Needs More Thought and Less Emotion

By now the US Supreme Court’s decision in Dobbs, which overruled Roe, is common knowledge. But what these two decisions actually decided is often misunderstood or misrepresented. And the problems they are trying to address are rarely considered in the fight between  “pro life” and “pro choice”.

A central legal issue underlying both Roe and Dobbs was not whether women should be permitted to have abortions, but who should decide the law governing abortion. Should judges decide or should legislators decide?  As both courts and legislatures are branches of government the unquestioned assumption has been that only one or the other branch of government should decide this.  The questions which have not asked are:

  • Why should any branch of government make the decision about who may have abortion?
  • What is the problem the abortion law is trying to solve? 
  • What is the best way of solving it?

The Endless Debate Over the US Constitution

Contrary to some media accounts. Roe didn’t grant an unlimited right to abortion and Dobbs didn’t say that a woman has no freedom to choose. These two decisions decided who — which branch of the US government — can make that decision: the judiciary or the legislature.  Roe held that judges, through constitutional interpretation, can decide which laws governing abortions are or are not constitutional.  Dobbs held that the proper constitutional interpretation is that there is no US constitutional protection for abortion, hence the state legislatures can legislate. But in either case, abortion is a decision controlled by a branch of government.

The “pro choice” advocates argue that Dobbs took away a woman’s constitutional right to choose what she may do with her body. The “pro life” advocates argue that this constitutional right never existed in the first place, the Roe court merely invented it, and it took 50 years to get it corrected in Dobbs. This endless debate about the intention of the authors of the constitution — when the constitution doesn’t specifically mention abortion —  is not easy to resolve. The abortion law battles have been a costly litigation game with alternating winners and losers. 

More Thought, Less Emotion

The abortion debate has long been sharply polarized in Western countries, particularly in the US, with large, highly emotional protests.  But gut feelings and mass demonstrations do not provide the basis for rational decision-making.  We need less emotion, fewer assumptions and more facts.  To help this process I suggest reviewing the questions below, and then examining the Canadian experience, where there has been no law governing abortion for the past 34 years.

Question 1

Why does this country (or state or province) need a law controlling abortion?  (What would happen without such a law?)

Question 2

If an abortion law is necessary who should make the law? Judges (as done in Roe) or legislators (as decided by Dobbs)?

If judges, why are they qualified to decide such questions?  If legislators, how do politicians know what the right answer is in the many and varied situations in which abortions are sought? Is there even one right answer?

Question 3

If an abortion law is necessary, what restrictions should the law impose, in what situations on (i) women seeking an abortion, and/or (ii) physicians willing to providing an abortion under some circumstances but not others?

The Canadian Experience

The US is not the only country that has had laws dealing with abortion.

We can learn from the laws of other countries with legal systems similar to the US.  Canada used to have an abortion law as part of its Criminal Code, but after the Supreme Court of Canada struck that law down in 1988, Canada has had no abortion for 34 years.  It’s as if Canada had implicitly decided that it does not need a law controlling abortion.  What has been the Canadian experience since 1988? Keep reading.

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