In all my years in the law, I have never come across such cock-and-bull reasoning as the one propounded by the majority in the US Supreme Court
On Friday, the US Supreme Court handed down its much-anticipated judgment in the Mississippi case that women will no longer have the right to abortion, reversing the landmark Supreme Court decision in Roe v Wade in 1973.
The way the constitution works in America is that in taking away the individual right to abortion it will now be up to state legislatures to control and even ban abortion altogether.
Some very conservative states would not only adopt draconian measures against abortion but may seek to encroach on other rights that derive from the same principles as Roe v Wade. Thus, the rationale behind the decision on abortion is far-reaching and may disturb other fundamental rights.
The reasoning of the majority of the Supreme Court in the Mississippi case is unhistorical. It is based on the perverse ground that the right of women to have an abortion was based on egregious reasoning because it “was not deeply rooted in history.” Of course it wasn’t since women did not have any say in the making of the law until the latter part of the 20th century.
In all my years in the law I have never come across such cock-and-bull reasoning as the one propounded by the majority in the US Supreme Court about the lack of historical evidence from the Founding Fathers giving the right of abortion to women. It would be different if they were Founding Mothers but alas they were not and the whole edifice of the case collapses under the weight of the male domination of the law and its traditions until the women’s movement acquired momentum in the 1960s.
The date in 1973 on which the Supreme Court decriminalised abortion in Roe v Wade is significant.
Although it was the time of President Richard Nixon and his silent majority, it was also the time of the permissive age, of the contraceptive pill and the sexual liberation of women it wrought – all of which continued apace to this day and are associated with gender equality.
So, it is very odd that now that western societies are well-rid of hang-ups about the private lives of others, the US Supreme Court is harking back to the 18th century in search of the rights of women in 21st century when everyone knows they were not treated as equals to men until fairly recently.
In Ireland in a referendum in 2018 the people voted in favour of the right to abortion in line with the rest of Europe and in mainland Britain abortion was decriminalised in 1967, yet in some states in the US the right to abortion has been under attack for many years culminating in the decision of the Supreme Court.
Roe v Wade decided that women had the right to terminate pregnancy in its early stages on the basis of the woman’s personal liberty – her right to choose. As such it was rooted in the idea of personal freedom in the pursuit of happiness free from state interference, adapted to suit the new age of gender equality.
The principle on which Roe v Wade was based is that there are some personal and private choices that are “off limits to majority rule” which is also the principle behind the case law of the European Convention on Human Rights on people’s right to private and family life.
The freedom to choose in private matters always involves striking a balance between the interests of the individual and the public interest in protecting health and morals and the rights and freedoms of others – including the unborn. It has never been argued nor could it be that the right to abortion is an absolute right.
In Roe v Wade the court struck a fair balance rationally, taking into account the normal development of the foetus on the basis that it is not in law a person. In the first trimester of pregnancy the woman has the choice whether to terminate a pregnancy because at that stage her interests deserve to be paramount.
After that, the state can regulate abortions until the unborn child can survive outside its mother’s womb; at which point, abortion is no longer an option for the mother as the child’s interests become paramount – the idea behind this is that an ability to survive outside the womb is so close to being a person as to be indistinguishable.
Obviously, the balance struck in Roe v Wade could not meet everyone’s moral and ethical standards. How could it? But in terms of balancing the competing interests the decision and its reasoning were rational and moderate and in line with Aristotelian ethics that everything in moderation is best.
More importantly, as the dissentient judges point out, generations of women built their lives and relationships around the right to choose, which the system of binding precedent was designed to protect from unrestrained judicial activism. Now the certainty in the law that women relied in the conduct of their private lives has been shaken to the core as a result of the Mississippi decision.
In Britain, the UK Supreme Court normally treats previous decisions as binding but can depart from them where a previous decision unduly restricts the proper development of the law or would lead to an unjust result. However, the idea of departing from a previous decision and taking away the right of abortion of fifty years standing would horrify most UK Supreme Court judges.
Alper Ali Riza is a queen’s counsel in the UK and a retired part-time judge