Wednesday, March 08, 2006

Why laws not court rulings should decide great debates

In South Dakota a bill has now been signed into law that seeks to outlaw abortion in the state. It is possible that the wranglings over this will lead to a challenge to Roe v. Wade, the US Supreme Court ruling that is the basis for the legal provision of abortion across the United States.

Long-time readers of my blog will have seen my views on abortion expressed more than once so I won't recycle them here. But what is worrying is the way that the outcome of this entire debate rests entirely on the judgement of a mere nine Supreme Court Justices - and by the time the case reaches the Court a single further appointment may have changed the balance. What self-respecting polity allows decisions to be made in such a way, allows laws to be upheld or vetoed by the political whims at the random moment when vacancies arise on the Court and ultimately ignore popular opinion?

This bill is one of the most extreme pieces of "pro life" ("pro slavery" would be a more apt term) legislation yet tried, making abortion illegal even in cases of incest and rape. These fanatics care nothing for women who will find themselves enduring a perpetual nine month long rape, all due to their prejudices. If the Supreme Court throws out Roe vs. Wade then state after state will pass such extreme laws with the backing of the courts.

It is absurd that this debate will be decided in the Supreme Court. Contrast the position with this country, where the abortion question has been decided by Parliament and taken beyond the petty squabbles of partisan politics. Supreme Courts do nothing to aid democracy and freedom. Legislatures can overturn bad laws and federal legislatures can enact civil rights legislation, but absolute court rulings are far harder to disolve. Let us never follow the US route.


Anonymous said...

OK, in short sentences with easy words:

The US has a constitution. It is written down on a piece of paper, and has primacy over ordinary laws. The supreme court is tasked with upholding the constitution.

The constitution enumerates certain rights that people have, that it guarantees will not be violated by US law. The supreme court in Roe v Wade ruled that a ban on abortion was a violation of a woman's constitutionally guaranteed right to privacy, and that therefore states were not permitted to ban it. It should be noted that before Roe, abortion was legal in some of the states.

There is much speculation that the Court will reverse its previous opinion and decide that, actually, the Constitution doesn't protect the right to abortion. If it makes that decision, then the issue will revert to the states. In other words, it will be up to the democratically expressed views of the majority in a state to decide if and how abortion should be permitted.

There is, of course, a democratic process to change the constitution, and if it is the view of the vast majority that the Supreme Court has done the wrong thing, the Constitution can be amended. There is a high bar to do so, which seems rather sensible - you really don't want 51% of the population to be able to abandon a fundamental right.

The existance of a written constitution with a high bar to changing it protects you somewhat against unconscious opinion-creep, where the political group-think drifts slowly over time in a particular direction (eg. in the UK away from legal ownership of guns). You can still change your view on basic rights, of course, but it has to be done explicitly.

Tim Roll-Pickering said...

The idea that the "pro life" (sic) campaigners will settle for merely overturning Roe vs. Wade is dubious. They will settle for nothing less than permanently entrenching a pro life position, whether through a Supreme Court ruling or a constitutional amendment.

Roe vs. Wade actually harmed to pro choice movement. It shifted the debate away from liberalising existing laws by persuading voters to vote packing the Supreme Court and made the issue a party political football. This is not a case of requiring an explicit decision on what is otherwise opinion creep but a polarisation of the debate to extreme proportions.


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