The US Supreme Court can be stacked by judges subscribing to one’s ideology and subsequently used to reverse laws at will, a process that destroys the legitimacy of the courts.
The decision of the Supreme Court of the United States to reverse Roe vs Wade effectively terminates a woman’s right to abortion that had existed in the United States for 50 years. Additionally, it has far-reaching implications for American democracy and calls into question the legitimacy of the Supreme Court of that country.
Roe vs Wade refers to a case that was brought by a Texas resident, Norma McCorvey (legal pseudonym Jane Roe) against the local district attorney, Henry Wade, in 1969, challenging the constitutionality of Texas abortion laws where abortion was illegal except to save the mother’s life.
On 22 January 1973, in a landmark ruling that invoked the 14th Amendment of the US Constitution, the Supreme Court in 7-2 decision cemented a woman’s right to abortion as a fundamental right and a right to privacy.
In 1992, the Supreme Court of the United States upheld Roe vs Wade in the Planned Parenthood v. Casey case with a slight modification; it gave the government the right to intervene at the point of viability of the foetus at 24 weeks.
What are the practical implications of nullifying Roe vs Wade?
With this decision, states are free to enact their own abortion laws without any federal strictures. Abortion can be banned for any reason and states now have the authority to divine the timing of an abortion.
Some states could very well ban abortion from the time of conception, while others may choose to do so after 6 weeks. Most states will allow abortion to save the life of the mother, but exceptions to the rule in cases of rape or incest or foetal abnormality may differ from state to state.
Several Republican states have been waiting for this moment and have trigger laws in place that automatically kick in once Roe vs Wade ceased to exist.
This altered scenario will prove disastrous for women, resulting in unnecessary pain and suffering. Women will be forced to carry the agonising burden of a child conceived by rape or incest, subject themselves to the dangers of shady abortion clinics or compel them to travel to other states in quest of an abortion for which they could be penalised.
Apart from impacting women’s rights, this decision has far reaching implications for American judiciary and democracy.
The 14th amendment states that “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.”
It was this amendment that was invoked originally to justify Roe vs Wade. Over the years, the Supreme Court has interpreted the 14th Amendment to justify other rights and prevent states from enacting laws that violate rights not directly stated in the Constitution, including the right to privacy.
Ironically, Justice Alito used the same amendment to overturn Roe vs Wade in the present judgement: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and implicit in the concept of ordered liberty… The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.”
His colleague, Justice Thomas went a step further and averred that the legal rationale for the present decision could be used as a precedent to examine other issues like same-sex marriages, the criminalisation of consensual homosexual conduct, and the rights of married people to have access to contraception.
This judgement also puts the spotlight on the politicisation of the judiciary.
The dissenting judges in the current case rightly pointed out that the right to abortion was established by a ruling 50 years ago and reaffirmed by another judgement 20 years later. There was no explicit reason to change this statute they argued, as “no recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed.”
The only thing that had changed since Roe vs Wade was the construct of the Supreme Court. The Supreme Court is now dominated by Republican appointees. Of the 9 judges, six of them—Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, Alito and Chief Justice John Roberts—have all been appointed by Republican Presidents.
In summary, this was not a decision embedded in pure jurisprudence or objective neutrality, but one heavily influenced by political partisanship or as the dissenting judges termed it: “Today, the proclivities of individuals rule.”
This case emphasises a glaring deficiency of American democracy—the fluidity of the judicial system which can be altered by political dominance. The Supreme Court can be stacked by judges subscribing to one’s ideology and subsequently used to reverse laws at will, a process that destroys the legitimacy of the courts.
Legitimacy of the courts is vital to the democratic process, especially for the losing side as one opinion writer in the New York Times summed up (Peter Coy. The Politicization of the Supreme Court Is Eroding Its Legitimacy. June 27, 2022): “Legitimacy is for losers…is a profound concept. The winning side in a decision will gladly accept it without asking why. But the losing side—whether the decision is made by a basketball referee or the Supreme Court—will accept defeat only if they believe the decision was made fairly and by the book… That’s why the politicization of the U.S. Supreme Court is so alarming. People on the losing end of Supreme Court decisions increasingly feel that justice is not being served. That’s a scary situation for the high court, and for American democracy in general.”
Justice Sotomayor was even more direct in her oral arguments, she asked “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She went on to answer her own question: “I don’t see how it is possible.”
June 24, 2022 was a sad day for American democracy.
(P.S: In India the process of appointing a SC judge is less subject to political influences though not totally bereft of it. The appointment is initiated by the Chief Justice in concert with a collegium of judges who then propose names or a panel of names to the political executive for approval and for advising the President who is the constitutionally authorised appointing body.)