Flat White

A victory for freedom and democracy

30 June 2022

10:00 AM

30 June 2022

10:00 AM

The US Supreme Court finally overturned Roe vs. Wade – the 1973 precedent that struck down a swath of federal and state laws restricting abortion. The ruling came in the Dobbs vs. Jackson Women’s Health Organization decision, on June 24.

It is baffling that a decision such as Roe took almost 50 years to be overturned.

The decision in Roe was an act of will, not legal judgment. The right it announced had nothing to do with the Constitution or the Court’s precedent. Justice White definitely wasn’t overstating when he stated in his dissent in Roe that that ruling was ‘an exercise of raw judicial power’.

He said:

‘I find nothing in the language or history of the Constitution to support the Court’s judgment. The court simply fashions and announces a new constitutional right for pregnant mothers, and with scarcely any reason or authority for its action.’

There were terrible consequences in America of shutting down for such a long time the democratic debate on an issue of profound public significance. Resolving highly contested political debates by means of judicial decree increases social conflicts that could be prevented when the democratic process is allowed to provide for compromise and adjustment.

As Chief John Roberts said in Obergerfell vs. Hodges (2015), ‘Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem the sort of things courts usually decide.’

While the courts in America must enforce the law, legislatures are definitely in a better position to find compromises and gather the full range of policy considerations by crafting exemptions and protections that optimise respect for the interests concerned. By imposing their vision of abortion, the Court in Roe was stealing an important decision from the people.

As the Court said in Schuette vs. Bamn (2014): ‘Respectful deliberation is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.’

The role of the judiciary is to apply the law and not to make it. A judge who dislikes the constraints of his or her judicial role because it prevents the fulfilment of a public policy or political agenda, should immediately leave the judiciary and seek to enter a legislature. That being so, Justice Samuel Alito was quite right to say in Dobbs that ‘the Constitution does not confer a right to abortion’ and that Roe was ‘egregiously wrong and deeply damaging’ to the nation. 

The issue of abortion is now finally returned to where it constitutionally belongs: the people of the individual states. In sum, this decision is the reversal of a judicial ruling that usurped the constitutional right of the American people to decide whether to keep or alter the legal status of the unborn child.

With this ruling in Dobbs, this important issue is returned to the elected legislature as it had been the intention of the American Founders. As Chief Justice Roberts also said in Obergefell

‘Those who founded our country … risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges … In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will.’

Above all, the decision in Dobbs restores the nation’s federal system in a way that respects the language and spirit of the US Constitution. When the issue of abortion is left to the people of the respective states, some states will legalise abortion and others will not. 

Indeed, American states which allow for abortion on demand outnumber pro-life states eighteen to thirteen, while the rest have neither an immediate ban nor a codification in place. The states that codify abortion into law irrespective of the Supreme Court are California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

The states that have pro-life laws restricting abortion are Arkansas, Kentucky, Idaho, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Wyoming, and Utah. Many of these states have laws banning abortion immediately coming into effect following Roe’s overturn or have legislated on the issue enabling them to pass similar abortion-restricting laws in the near future. 

Conformity of the existing law with the will of the people is the basic aim of democracy. But laws that are valid to the whole national territory may easily come into contradiction with the majority will of a group living in a particular area of the national territory. Fortunately, the federal system established by the American Constitution provides a way for people with different beliefs to live together in a single nation.

Let me explain it better. The majority of the national community may be conservative or classical liberal, whereas the majority of one or more states may be socialistic or ‘liberal’. In order to diminish the possible dissatisfaction between the contents of the law and the will of the people subject to it, it may be necessary that some laws be valid only for certain areas and be created only by majority of votes of the people living in these particular states. 

By returning this area of law to the states the Supreme Court in Dobbs has also enhanced personal freedom. This is so because ‘federalism is the constitutional guarantee most protective of the individual’s freedom to make his own choices’. As the late US federal judge, Robert Bork, once pointed out:

‘If another state allows the liberty you value, you can move there, and the choice of what freedom you value is yours alone, not dependent on those who made the Constitution.’

A similar point was made by Antonin Scalia, who served on the Supreme Court from 1986 until his death in 2016. Justice Scalia thought it was ‘quite absurd to throw away the principal benefit of that system by constitutionalising, and hence federalising, all sorts of dispositions never addressed by the text of the Constitution’. According to him: 

‘Now there are many reasons for having a federal system, but surely the most important is that it produces more citizens content with the laws under which they live. If, for example, the question of permitting the so-called [“right to abortion”] were put to a nationwide referendum, the outcome might well be 51 percent to 49 percent, one way or the other. If that result were imposed nationwide, nearly half of the population would be living under a regime it disapproved. But such a huge proportion of the [pro-abortion] vote would be in states such as New York, California, and Nevada; and a huge proportion of the [pro-life] vote would be in the south, and in such western states as Utah and New Mexico. If the question of permitting [abortion] were left to the states – which is surely where the First Amendment originally left it – perhaps as much as 80 per cent of the population would be living under a regime that it approved.’

By imposing its own elitist view on the entire nation, the Court in Roe aggravated social conflict and the nation has now experienced four decades of very bitter and lasting wounds. Providentially, the recent decision in Dobbs finally puts a stop to the usurpation of democracy by an unelected judicial elite, thus returning the discussion of an important social issue from the judicial realm to the proper constitutional sphere of democratic deliberation via the elected representatives of the people in their respective state legislatures. 

Sir Isaac Isaacs (1855–1948), who served on the Australian High Court from 1906-31, including as Chief Justice from 1930, once reminded his judicial peers: 

‘A prior decision does not constitute the law, but is only a judicial declaration as to what the law is … If we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should ultimately be right.’

The unelected judges of the US Supreme Court finally got it right. They have decided to restore the respect of their Court to the Constitution’s language, history, and its authority.

As for myself, I commend the five US justices who had the courage to stand firm for the Constitution, for democracy, and for personal freedom.

Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA. From 2012 to 2017, he served as a Law Reform Commissioner in Western Australia. While serving as Associate Dean (Research) at Murdoch School of Law, he was awarded the Vice Chancellor’s Award for Excellence in Research, in 2012.


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