A Constitutional Game of Whodunnit?

By Ivan A.

One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave “almost no sense of an obligation to try to be.”

-Supreme Court Justice Alito’s Opinion of the Court (June 24, 2022)

The reaction was immediate. Within a few hours of the Supreme Court releasing its ruling on Dobbs v Jackson Women’s Health Organisation in which it decided to repeal the longstanding legal precedent reached in the 1973 case: Roe v Wade (which offered interpreted the right to abortion to be protected by the US Constitution), many states tightened restrictions on abortion laws. Examples include the Texas Tribune which announced its plans to permanently ban abortions including instances where conception was a result of rape or incest, offering a sentence of life imprisonment or a $100,000 fine for doctors who performed abortions on pregnant women. The laws are expected to come into effect by the end of July. States such as Louisianna, Kentucky and South Dakota had trigger laws go into effect immediately upon the ruling, banning abortion as soon as the announcement was made. Political pundits have identified 26 out of America’s 50 states which will either criminalise or seek to heavily tighten their abortion legislation in the coming weeks.

The decision reached last week will take parts of America as far back as 50 years restricting the rights of women on an unequal basis. For instance, a woman in California will have more control over her reproductive rights than one in Oklahoma. As with any shocking disaster, many were quick to find someone to blame and, in this instance, the perpetrator was identified to be the Supreme Court which voted in favour of overruling both Roe v Wade and Planned Parenthood v Casey. However, the issue at hand is more nuanced than one would think at first glance. Whilst it might have been the judiciary’s decision to have revoked the precedent it is actually the legislature that ought to be held responsible for the insufficient protections offered in upholding Roe v Wade, to begin with. 

According to the doctrine of separation of powers which is a prominent convention in most Western democracies including the United Kingdom and of course America, the state is split into three equal but separate branches: the judiciary, the legislature and the executive. Now whilst the American judiciary has the power to declare statute as unconstitutional and repeal and make legal precedents, its powers are limited as it can only interpret the law. It is only the US Congress (consisting of the House of Representatives and the Senate) that can create and strike down statute law as well as make amendments to the constitution. Supreme Court Justice Alito in his highly controversial opinion on the case summarised the argument perfectly stating: “no such right [abortion] is protected by any constitutional provision”. The only way in which constitutional protection of abortion rights can be insured is through an amendment to the Constitution which no other branch of the state except the legislature can offer. This is of no surprise. In the weeks leading up to the Supreme Court’s decision, President Joe Biden appealed to Congress to codify Roe v Wade stating that “the only way we can secure a woman’s right to choose […] is for Congress to restore the protections of Roe v. Wade as federal law. [acknowledging that] No executive action from the president can do that”. 

Congress’s continued hesitancy to legislate or even draft a bill to be discussed in the House of Representatives, forces the Supreme Court to be justiciable and make unsuitable political decisions. A judiciary being able to determine such protections is simply inappropriate and problematic as the verdicts reached by the court will not be permanent and would likely lead to short-lived protections that could be strengthened or revoked based on the political temperament of the sitting court at the time. For instance, the decision to rule in favour of Roe reflected the more liberal opinions of the court resulting in a seven-justice majority contrasting from the conservative six-justice majority in the current Supreme court which ruled in favour of Dobbs.

Despite it being characterised by the media as the dreaded decision of doom, the Supreme Court’s ruling could rescue and reinstate the protections of Roe v Wade as it takes the significant power to decide on the matter and “return[s] that authority to the people and their elected representatives”. By handing over the power to individual state legislatures to decide the nature of abortion rights, power is indirectly handed to the American people. Thus, if the electorate feels strongly enough that their rights have been revoked, then the gift that is democracy offers a solution allowing for the people to elect to office representatives that will legislate in the way in which the people wish.

The timing of the decisions also can affect protections on a federal level given that the midterms are not too far ahead (November). The American people have the choice to increase the majority of the Democrats in both the House of Representatives and the Senate, making it easier for abortion rights to be codified with minimal Republican party opposition which would be the strongest protection of all.

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