The challenge before the Supreme Court

Abortion is not an easy topic to discuss. It is unique in that the contention between the two sides is on a fundamental level. On one hand, it is about woman’s autonomy over her own body; on the other, about the life that is growing inside her body. In so far as that organism inside her womb is not an individual human life, the state appears to have no right to intervene in what a woman does with her own body and whether she carries on with the pregnancy; but, from the point that it is considered a human being, arguments are put forward for the state’s interests in protecting that life. The question as to at which point is state’s intervention justified, and where to draw the line between the right of a woman to abortion and her offspring’s right to life is the central policy question in this issue; the merits and demerits of various approaches have been discussed and debated many times over, and are often based on the presuppositions as to when human life begins.

The question of where to draw the line was not, however, the question that the Supreme Court had to answer. What the Supreme Court had to decide was who gets to choose as to where to draw the line. If the US constitution contains a provision for abortion, then the whole country is to be governed according to that provision (unless it is amended). If there is no such provision already present in the constitution, then the issue is to be approached democratically, whether on state level, or through nationwide amendments by the Congress.

Those who bemoan the idea of a small elite deciding on the abortion issue for the rest of the country should have been the first to call for overturning Roe v Wade. After all, it was precisely in Roe v Wade that seven unelected, lifetime-appointed justices derived, out of thin air, a law on when and under what conditions an abortion may be performed and regulated, and, implicitly, where the balance between woman’s “right to choose” and child’s “right to life” lies. The ruling stated that government cannot regulate abortion in the first trimester, can only regulate it for the sake of maternal healthcare in the second trimester, and can regulate or prohibit it in the third trimester (post-viability), but only provided that there is allowance for preserving the life or health of the mother. Nothing resembling such ruling could be found in the constitution; it was simply seven Supreme Court justices deciding, completely at their own discretion, what the optimal general approach is for the whole country. The court couldn’t even definitively point as to where in the constitution the right to abortion is to be found; the majority opinion in Dobbs vs Jackson rightly shreds to pieces the whole reasoning of Roe v Wade (see especially pp 46-55):

“Without any grounding in the constitutional text, history,
or precedent, [Roe v Wade] imposed on the entire country a detailed set
of rules much like those that one might expect to find in a
statute or regulation. […] This elaborate scheme was the Court’s own brainchild.
Neither party advocated the trimester framework; nor did
either party or any amicus argue that “viability” should
mark the point at which the scope of the abortion right and
a State’s regulatory authority should be substantially
transformed.”

The principles involved

Why, then, are there so many people attacking the current Supreme Court for saying that it does not have the authority to decide on abortion? It is, perhaps, because they felt more comfortable with the outcome of Roe v Wade, and were more or less content with the compromise that the Supreme Court of 1973 came up with. But if so, then they should not object if a different, perhaps more conservative, set of unelected justices came up with a different framework. What would it be like, if the current, made up of more conservative justices Supreme Court had approached the issue with the same attitude that the 1973 Supreme Court had? It could have just as easily said, for example, that its own view of the best balancing of interests is to have abortion prohibited after the first trimester, and open to state regulation in the first trimester. Wouldn’t that be considered a tyrannical imposition of those justices’ worldview on the rest of the country, with no grounding in the constitution, – what the dissenting Justice White called “an exercise of raw judicial power” in 1973? Yet the principle would be the same.

Fortunately, the current Supreme Court did not do that. It didn’t conjure out of thin air a new national framework on abortion that would be, in their view, the best. Instead, it said what the Supreme Court of 1973 should have said – that there is no provision for abortion in the constitution, and that the matter should therefore be approached democratically. It is up to the elected representatives of the voting population to craft legislation regarding abortion, not to the personal opinions of a few justices.

Given the diversity of opinions in the US, this means that everyone will be dissatisfied to some extent. Some will be harshly critical of the law in Oklahoma prohibiting abortion under almost any conditions after conception. Others will be harshly critical of New York, where abortion was removed from the criminal code, and the death of an unborn child resulting from negligence or assault on a pregnant woman is no longer considered homicide. Of course, this reality simply reveals that, despite being the status quo for half a century, the ruling of Roe v Wade was still hotly contested and unacceptable to a significant portion of the population.

It was not the responsibility of the Supreme Court to adjust its decision to the public opinion, however it is perceived. The whole reason behind life-time appointments is to shield the Supreme Court from whatever happens to be the popular public opinion of the time; despite the premature leak of the court decision, with follow-up protests and threats to the justices, the Supreme Court upheld its intended ruling. This was not a ruining of its reputation and integrity; quite the opposite. The justices did not submit to significant public pressure, nor did they impose their own views and values in this subject on the rest of the country, but instead stuck to the text and constitutionality of Roe v Wade. Any attacks on the integrity of the court should be based on how properly it interpreted the law, not whether we like or dislike the outcome.

The lessons drawn

The widespread negative reactions across media and social networks show, in my view, a fundamental misunderstanding of what is the role of justices. Those dissatisfied with the consequences of this decision should, at most, be angry with the state legislators of the particular laws that they dislike. Perhaps the only valid criticism of the Supreme Court can be that it did, in fact, miss the “right to abortion” in the constitution. But if the Supreme Court is correct (and it is, in my view) in its analysis – that no provision for abortion is currently present in the constitution – then all the attacks are uncalled for. The decision-making has shifted to where it ought have been for the past fifty years – to the electorate and the elected representatives – and it is up to the citizens to persuade one another and affect change.

The lesson that we ought to draw is that there is no excuse for accepting usurpation of judicial power, even if we happen to like the particular outcome of that usurpation. Those who were content with seven justices in 1973 deciding, based on their private judgement, what the abortion regulation should be like for the rest of the country, would have no right to complain if the current Supreme Court had done the same, just with a much more conservative-leaning outcome. Sadly, instead of appreciating the integrity of the current justices in rightly passing the decision-making over to a democratic process, many attack and demean them for supposedly oppressive and misogynistic ruling. But, as Robert Bork once said, “the renunciation of power is the morality of the jurist, not the assumption of power in the name of morality.”