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The Irish Times’ very weak view on Roe v Wade

Today’s editorial in the Irish Times on the prospect of the United States Supreme Court striking down Roe v Wade was about as bad as you might expect. It espouses the standard mainstream Irish doctrine on the United States, and its politics: By striking down the 50 year old ruling that made abortion a constitutional right, the Irish Times argues, the US Supreme Court would be doing huge damage to itself:

The damage to the supreme court and to the US political system would be deep and lasting.

The overt politicisation of the court as a partisan actor in current affairs has been very clear since it decided the 2000 election in favour of George W Bush and proceeded to steer US law in a conservative direction under its activist, Republican-appointed majority. The divisions that can make the country close to ungovernable would only worsen if Roe is struck out, and the political fallout would shake national politics in unpredictable ways.

Note the artistry in that little paragraph and a bit: The politicisation of the court began, per the Times, in 2000, and it has “steered US law in a conservative direction under its activist, Republican appointed majority” ever since.

This is patent nonsense, and unworthy of a newspaper of record. If the Court is engaged in partisan activism now, by striking down Roe, then what was it engaged in in 1973, when it ruled on Roe in the first place? After all, that decision amounted to a direct intervention in the political process, depriving millions of Americans of the right to choose on this issue. Even the most avid defenders of Roe amongst US legal scholars regard it as the benchmark example of liberal judicial activism – not that you’d learn that from reading the Irish Times. Judicial activism, apparently, only begain in 2000. The Warren Court simply didn’t exist.

But more than just that, the rest of the paragraph is nonsense too: The US Supreme Court has steered the law in a conservative direction? This is the same court, remember, which effectively legalised Gay Marriage just three years ago in its decision in Obergefell versus Hodges. This is the same US Supreme Court which in 2007, in Massachusetts versus EPA, upheld the Government’s right to regulate carbon emissions. It is the same court which upheld Barack Obama’s enormous Obamacare health reform. It is a court which has frequently delivered landmark liberal rulings, in other words. It is the same Supreme Court which refused to even entertain Donald Trump’s various wild claims about the 2020 election.

But none of that matters to the Irish Times. You must believe – must believe – that the Court is a partisan institution that is actively working to a political agenda, because there is after all no other way that a civilised institution could take any action that offends liberal principles. When the US Supreme Court issues a ruling the Irish Times agrees with, it is a venerable institution. When it does not, it is a partisan institution undermining democracy itself. Institutions never risk undermining democracy, of course, when they advance liberal partisan goals. It’s a neat rhetorical trick.

There are legitimate reasons to oppose the overturning of Roe: An honest liberal might argue for example that the reliance interests created by the original decision outweigh any concerns people might have about whether the decision was right: In other words, that so many people have come to rely on Roe v Wade that overturning it creates unjustifiable turmoil in American life. The Irish Times could have made that argument in good faith, but they did not. They went with the “people who disagree with us are right wing political hacks” explanation instead.

Ultimately, of course, the repeal of Roe – if it happens – is not some enormous victory for Pro Lifers. It will bring US constitutional law on abortion in line with Irish law – an Irish law many of us fought fiercely against in 2018. US States will be able to enact abortion laws as they wish. Some will over-react and enact laws that are truly barbaric. When they do, you can safely predict, the Irish Times will say nothing.

It’s rare that an editorial in another newspaper requires a direct response, but the Irish Times remains, for all its flaws, one of Ireland’s largest newspapers. It has a duty to inform its readers, and to make editorial arguments that are honest and reasonable.

It is perfectly fair to disagree with Samuel Alito, and the four colleagues who may or may not join his opinion striking down Roe v Wade. But for the Irish Times to present the US Supreme Court as it does is not fitting of a newspaper. This is the kind of analysis one might expect from an angry partisan on twitter.

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