‘Trying to have it both ways’ is the expression that comes to mind in the furore over the reversal of Roe v Wade on both sides of the Atlantic.
During Ireland’s abortion debate in 2018, we were told that the Constitution was not the appropriate place to define the country’s position on abortion – that it should be a matter for the people and their duly elected, accountable, representatives. And that counsel prevailed on May 22nd, 2018 when approximately two thirds of the electorate voted to confer the right to legislate on abortion to Dáil Éireann.
The same people who made that case are now falling around in paroxysms of outrage because the US Supreme Court has essentially made that same call.
The reversal of Roe v. Wade returns the right to legislate for abortion to the public representatives in each and every American state. Power is back with the people. The problem for them of course is that many people in the US do not see abortion in their terms, as the exercie of a uniquely private, personal choice, as the expression of bodily autonomy and nothing more. In fact about half of the US states see abortion as an attack on the most fundamental of all rights, the right to life, admitetdly with the caveat, for a diminishing number of Americans, that that right can be forfeit by serious criminality.
The three dissenting judges in the Roe v Wade ruling wrote in their minority report that the decision replaced ‘rule by judges (for) rule by law’. If that was true for the reversal of Roe this week, then it must also have been true for the original, controversial ruling back in 1973. That also was ‘rule by judges’. Neither rules nor laws come out of thin air in this world. People make them, whether in courts or parliaments. The three judges appear to be making an argument against their own case in their attack on the majority opinion to reverse ‘the egregious wrong’ of 1973 and hand the issue of abortion back to the legislators accountable to the people.
The decision to hand back the issue to the democratic will is certainly progress for the pro-life side in this instance. But there are some questions around the elation that the pro-life movement is expressing worldwide at this point. In the Irish debate on abortion during the repeal campaign, the pro-life side argued that the right to life was not something to be left to the vagaries of majority opinion and politicians. It was a fundamental right that properly deserved constitutional protection. It needed to be ring-fenced from lobby groups and vested interests.
Four years on, we can see how that has played out. Clare Daly, among others, defended what she saw as limited abortion proposals in 2018, stating in the Dail that, contrary to what the pro-life campaign argued, they would not target Down Syndrome babies because the condition could not be diagnosed before 12 weeks. Now those same campaigners want to extend abortion limits tacitly to include Down Syndrome because women still ‘need to travel’ because our current laws are too restrictive in their interpretation of life-limiting conditions.
So the ‘slippery slope scaremongering’ derided by pro-choice campaigers has indeed turned out to be the inevitable progression predicted by the prolife movement. In other countries, including some states in the US, we can see how horrific and chilling the trajectory of this progression can be. It proves that a fundamental right is not one you can tamper with and preserve at the same time.
When the three dissenting judges wrote that ‘some issues are off-limits to majority rule’, they were again making something of an own-goal argument. Surely the first right to be ‘off limits’ is the right to life? How can the right to abortion, the destruction of a human life, take precedence over that? The three judges try to posit a foundational charter of human rights independent of human opinion and interpretation, one they happen to agree with of course. No such charter exists outside the life of faith. All laws take the cast of their framers’ values whether in jurisprudence or politics.
Without a value system based on faith, when even the most foundational values are contested, is it not better to leave decision making to the wider rather than the lesser forum, to the more fluid dynamics of democracy than the rigid decrees of a judicial elite? In general terms, is it not preferable to live with decisions that can be changed at the next election than those that take fifty or even more years to challenge?
The pro-choice movement would hail the Supreme Court if they affirmed the 1973 ruling. The process is seen as flawed now because they don’t like the outcome. That is wanting to have it both ways. Can liberal ideologues not see that? Probably not, given the growing incoherence and contradiction of their stances on a whole range of issues.