Published in The Sunday Times on 3/7/2022
By David Quinn
It is a liberal article of faith that history is moving in a certain direction, towards ‘progress’ as they define it. They might have to fight hard against the forces of ‘reaction’ to get to where they want, but when a particular goal is achieved, it becomes locked in and irreversible.
Brexit shook this faith badly. Once a country joined the EU, there could be no going back, in their view. For the UK to leave was not just a terrible mistake, it was almost an act of sacrilege, which is why some of the reaction to Brexit has been so angry and unhinged.
At a foundational level, it helped to plant a seed of doubt in the liberal mind that perhaps history is not going in the desired direction, after all. Even worse, maybe history is simply one damn thing after another with no final destination, and the Shining City on the Hill will never finally be built.
The election of Donald Trump as US president was a second blow to their faith, although normal service was resumed with the election of Joe Biden.
But now their faith has received a third blow, and it is probably the worst of all, because Roe vs Wade has been reversed after almost 50 years in a new ruling by the US Supreme Court called Dobbs vs Jackson.
Roe vs Wade was, of course, the decision by the court in 1973 that erased the patchwork quilt of abortion laws that then existed across the 50 states of America. It replaced them with a right to a terminate a pregnancy at any point up to viability, and for any reason, making it one of the most radical regimes anywhere in the Western world.
Is a law along these lines really something the average Irish person would support, even those who voted to repeal the pro-life amendment in 2018? Irish legislation currently permits abortion for any reason up to 12 weeks. To get to the regime imposed by Roe, we would have to extend that timeframe to roughly 24 weeks.
Roe vs Wade had existed for so long that it appeared to be set in stone. The problem is that the pro-life movement in America would not accept the received liberal narrative that once defeated, they should quit the field of battle forever. They did not fold up their tents and go home in 1973 when the Supreme Court reached its decision. Pro-life campaigners continued to believe in what they were doing and in the rightness of their cause. Roe never became ‘settled law’ in the minds of millions of Americans.
In the Dail on Tuesday, Taoiseach Micheal Martin reacted to the decision to overturn Roe vs Wade by warning that we must never allow the Irish Supreme Court to become politicised like in America as a result of Republican presidents nominating judges to the bench with the specific purpose of repealing the 1973 decision.
In fact, Martin has things exactly backwards. It was the Democrats and their judges who had politicised the Supreme Court and then caused the Republican counter-reaction.
The job of a judge is to interpret the law, not make it. That is the task of legislators and voters.
Back in 1973, the Supreme Court made law. There is no explicit right to abortion in the US Constitution and only by a very long stretch can it be said to exist as an implied right. In its 7-2 majority ruling in Roe, the court basically invented a constitutional right to abortion out of whole cloth. It was the ultimate political act, a usurpation of the proper, law-making role of voters and legislators.
One of the dissenting judges, Byron White (a Democrat, incidentally), famously called the majority decision “an exercise of raw judicial power”.
Even feminist icon, Ruth Bader Ginsburg, who served on the Supreme Court from 1993 until her death in 2020, had doubts about the Roe vs Wade decision from a purely legal, constitutional point of view.
In Roe, the court was being asked to consider an anti-abortion law in Texas. Ginsburg believed the court went too far in its ruling. She said: “A less-encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day might have served to reduce rather than to fuel controversy.”
She declared that the ruling “seemed entirely to remove the ball from the legislators’ court”, and because of the decision, “a well-organised and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”
She did not live to see Roe overturned, but she would not have been entirely surprised.
The decision in Dobbs vs Jackson does not suddenly ban abortion across America, contrary to the impression some might have. The ruling merely returns the matter to legislators. Republican-dominated states will protect the right to life, and Democrat-dominated states the right to choose.
French president, Emmanuel Macron, was among those attacking the new Supreme Court ruling. But why would he do that? In France, the abortion law is a matter for legislators and the French electorate, and now the same situation exists again in America after almost 50 years. If Americans in any given state want a very liberal abortion law, there is nothing to stop them voting into office state legislators who will grant them their wish.
In fact, the constitutional position in America is now the same as in Ireland, that is, the country’s abortion law is decided by our elected politicians, and not by judges. When the 8th amendment was inserted into the Irish Constitution by referendum in 1983, voters did that, not a politicised Supreme Court like in America in Roe. Then we voted to remove the 8th amendment four years ago.
Indeed, America is now in the same position as the EU. There is no right to abortion in the EU’s Charter of Fundamental Rights. The individual member-states decide their own abortion laws for themselves.
Therefore, liberals are roundly condemning the US Supreme Court for creating, or rather, restoring, the constitutional position that exists everywhere else in the Western world. Why would liberals object to this? Deep down, do they want the right to decide our abortion laws removed from voters entirely and left in the hands only of unelected judges? Certainly, this would seem to be the logic of their hysterical reaction to Dobbs vs Jackson, in which case they are far less committed to democracy than they like to pretend.