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The latest US anti-abortion laws are a response to judicial activism

By Brendan O'Reilly - posted Friday, 24 May 2019


On 14 May the Alabama State Legislature passed America’s most restrictive abortion law.  The law permits abortion only if the mother’s life is at risk or if the foetus cannot survive.  Notably, the law does not permit abortion in cases of rape or incest.

Under the Alabama Human Life Protection Act, performing an abortion in Alabama becomes a felony, and, "for homicide purposes", a foetus is a legal person. The woman who receives the abortion, however, is not to be held "criminally culpable or civilly liable".  The legislation also specifies that it isn’t enough for the mother to have an "emotional condition" or mental illness to justify an abortion.  A second doctor needs to agree that the mother has a "serious mental illness" that could cause her or the foetus to die.

There has in effect been a rush by Republican-controlled states to challenge the US Supreme Court’s landmark Roe v. Wade 1973 ruling, which legalised abortion nationwide.  Lawmakers in Arkansas, Georgia, Kentucky, Mississippi, Missouri, Ohio, and Utah have also passed new anti-abortion bills, and similar measures are pending in some other states.  A Supreme Court challenge to these laws seems almost guaranteed.

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It is uncertain what the reaction of the Supreme Court will be.

On the one hand, following the retirement of Justice Anthony Kennedy, and the appointments of Justices Brett Kavanaugh and Neil Gorsuch, conservatives now are in the majority.  During the late 1980s, Reagan era Chief Justice William Rehnquist (who dissented in Roe) tried to assemble a coalition to reverse the decision but fell one vote short.  The result was an opinion that expressed hostility to Roe without changing the legal status quo.

On the other hand, the Washington Times has asserted that that no Court majority would now want to overrule Roe and "be credited with up-ending settled law and causing massive societal upheaval."  Another thesis is that the Republicans "want to keep their base mad and run on it forever, but never catch the car."

If Roe v Wade is over-ruled, it is very likely that the US would end up having very restrictive abortion laws in its "Bible-belt" states, and liberal abortion laws elsewhere.

Apart from moral and social considerations (and we all have our own standard of morality), there is a huge legal issue here, that is entirely separate from the moral one.  Who is to prevail in the making of law, the US Supreme Court or the various legislatures?  Obviously, if the Supreme Court is merely enforcing the contents of the US Constitution, it is on strong ground.  If the Supreme Court was not on strong constitutional grounds, then it had over-stepped its bounds and undermined democracy by over-ruling state legislatures.

It is therefore appropriate to examine the constitutional basis for Roe v Wade.  My take on the case is below.

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The decision in Roe v Wade was mainly based on Section 1 of the 14th Amendment to the U.S. Constitution, ratified in 1868.  This amendment was passed largely to protect the rights of freed slaves, who were affected by newly-enacted regressive laws in many southern states.  The relevant wording is as follows:

All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

According to any plain English interpretation of this section, it is silent on the question of abortion.  If anything is said in relation to abortion, the reference to "nor shall any State deprive any person of life...without due process of law" can only be construed to support a "right to life" rather than a "right to abortion".

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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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