THE US Supreme Court ruling on abortion has split the people, as though America did not have enough causes of internal strife already.
In the US the law is complicated by the interaction of the Federal Constitution and the law-making bodies of its 50 member states, each of which has its own Constitution and body of laws. Several States prepared for the judgment in advance so that they could immediately set about modifying their own abortion laws.
State legislators run the risk of framing simplistic rules for ethically complex cases. For example, in Ohio, by sometime next year the only exception to a total ban on abortion may be if the mother’s life is at risk; rape cases may not be exempted. The Senate President has said: ‘A baby is a baby even if it came through some terrible awful thing like rape. The answer can’t be let’s just kill the baby.’
In the UK there was a legal test case on just that, long before the 1967 Abortion Act. As journalist Peter Hitchens relates, in 1938 a Dr Aleck Bourne performed an abortion on a 14-year-old girl who had been gang-raped. He reported himself to the authorities for a trial that could have earned him a life sentence but was acquitted because, the judge said, the pregnancy would likely have made the girl ‘a physical and mental wreck’ and the doctor was ‘operating for the purpose of preserving the life of the mother’.
Yet Dr Bourne opposed the call for abortion on demand, saying it would be a ‘calamity’ and would lead to ‘the greatest holocaust in history’. Asked by other women for an abortion, thinking he would sympathise, he refused and later recalled, ‘I have never known a woman who, when the baby was born, was not overjoyed that I had not killed it.’
In the US the Supreme Court tried to mediate the conflicting laws of the States on abortion with its 1973 Roe v Wade ruling, based on the implicit Constitutional entitlement to ‘privacy’ (the right to make personal decisions principally affecting oneself).
The latest ruling points out that there was no reference to abortion in the Constitution, drawn up by the Founding Fathers nearly 250 years ago.
That is known as an ‘originalist’ interpretation and raises questions about whether the Constitution needs updating. Thomas Jefferson himself suggested in 1816 that each generation should be able to revise it for their own needs:
‘By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure.’
Jefferson saw the Constitution as founded on the will of living people, and assumed the possibility of communal assent. But what if the law is highly controversial and the authorities are felt to be promoting a one-sided political agenda? How can citizens influence their State?
Worse, the parties may agree on some issues, so there is no real choice anyway. For example, the Republicans have long had trimming social security benefits in their sights, but Biden the Democrat has just appointed Andrew Biggs to the government’s Social Security Advisory Board; Biggs may help steer a changeover from the State-guaranteed pension to an investment-related product that stands to make a fortune for Wall Street while exposing the citizen to market risks.
In relation to abortions, Biden can’t countermand the Supreme Court but has made reassuring noises about individual rights implicit in the Constitution he is sworn to uphold, relating them to the chance to vote for his party in November’s elections: ‘The right to privacy, liberty, equality — they’re all on the ballot. Until then, I will do all in my power to protect a woman’s right in states where they will face the consequences of today’s decision.’
In this case, a key right is freedom of movement. Some legislatures are already seeking to criminalise those trying to go out-of-State for an abortion, and anyone who helps them. Ironically, US Supreme Court Justice Brett Kavanaugh, whom a man allegedly planned to assassinate because of the leaked draft judgment, has already indicated that he would rule against the attempt to impose travel restrictions.
The people are impatient, so much so that one wonders if the slow and complex machinery of institutional democracy can work. One can understand the frustration and sense of powerlessness. The State has become over-mighty; the Constitutions of the US and of Britain (who led the way) were designed to limit the power and influence of the Executive. Yet the modern technocratic State (and its Silicon Valley friends) now intrudes far into our privacy, supplying information to the policymakers, the behavioural ‘nudgers’, law enforcement agencies.
Maybe there is too much law. In 2019 the US Code listed more than 5,000 criminal offences, and that’s just federal law. The more laws that are created the closer we get to a police state.
If we value the liberty of the individual, we must learn not to involve the authorities in every matter. Instead of framing and enforcing criminal laws on one another, in some cases we should revive the practice of moral suasion; argue and listen, prepare to modify our opinions, sometimes agree to disagree, but refrain from blowing the whistle.
This appeared in Now and Next on June 28, 2022, and is republished by kind permission.