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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


A woman's right to abortion instead was derived by the US Supreme Court along a convoluted route of legal interpretations.

In Griswold v. Connecticut(1965), a case about contraception, the Supreme Court held that the right to privacy was found in the Due Process clause of the 14th Amendment (cited above) because it was held to include individual privacy.  By upholding marital privacy, the Court struck down bans on contraception.  The newly discovered "right to privacy" subsequently was to have broader implications.

This (questionable) "constitutional right to privacy" went on to be the basis for Roe v. Wade (1973), in which the Court invalidated a Texas law forbidding abortion except to save the mother's life.  The Court ruled, in a 7-2 decision, that a woman’s right to choose an abortion was also protected by the privacy rights "guaranteed" by the Fourteenth Amendment to the U.S. Constitution. Essentially it was decided that Griswold v. Connecticut established the right to privacy in relation to a range of medical procedures.

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Roewas criticised by many in the legal community, with the decision being seen as a form of judicial activism.  The American constitutional lawyer Laurence Tribe noted that: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

The broader issue of judicial activism should be of immense concern to those, who believe in democracy.  It is very clear that many judicial decisions in the US Supreme Court and its equivalent in some other countries (including Australia) involve (in part) the courts usurping the role of the legislature beyond any role of the common law.  In many cases the decisions of an activist court can be overcome with subsequent over-riding legislation, though it is politically difficult to remove a right already bestowed by a court.  (Imagine what would happen in Australia if a government sought to reverse the Mabo judgment through over-riding legislation!)

It is also well nigh impossible for the legislature to overturn a supreme/high court decision, if this is based on an interpretation of the constitution.  The only available option in such cases is a referendum, and we know how difficult they are to pass, especially in Australia.

There is a right way and a wrong way to determine legal solutions to controversial moral issues.  Relying on judicial activism is the wrong approach.  Indeed, if the judiciary are to confine their role to objectively interpreting the law, in theory liberal and conservative judges should not differ greatly in their decisions.

In Australia gay marriage was eventually brought about by a free conscience vote in the Parliament.  Conscience votes or referenda are the only sensible way of legally resolving divisive moral issues in a democratic way.  Where a parliament does not have the will to act, it is not the role of the courts to act on their behalf.

Other good examples of democracy in action were the moral battles in Ireland concerning divorce, abortion and same sex marriage laws.  Change was much easier to achieve in Ireland (despite the political influence of the Catholic Church) because constitutional changes are more straightforward to effect in Ireland compared with (for example) under Australia's constitutional provisions.

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The Constitution of Ireland adopted in 1937 contained a ban on divorce (which was an appeasement to the Catholic Church).  Following a vigorous public debate in the 1990s, the Fifteenth Amendment of the Constitution Act 1995 removed this constitutional prohibition on divorce in Ireland, and allowed for the dissolution of a marriage, provided specified conditions were satisfied.

Ireland also had one major Supreme Court case and two successful referenda on abortion.  (Abortion had been prohibited in Ireland by the UK Offences against the Person Act 1861).

Following a campaign by Catholic activists, the Eighth Amendment of the Constitution Act 1983 amended the Constitution of Ireland by inserting a subsection recognising the equal right to life of the pregnant woman and the unborn.  The amendment ensured that legislation or judicial interpretation would be restricted to allowing abortion in circumstances where the life of a pregnant woman was at risk.

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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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