Constitutional confusion

The European Court of Human Rights regards the Human Rights Convention as being a ‘living instrument’. It has to be interpreted in the light of contemporary circumstances, otherwise it becomes mired in the thinking of 70 years ago. It would be limited in the assistance which could be provided to resolve problems which, although analogous to those specifically mentioned in the Convention, were unanticipated when the Convention was created.

Until the latest decision, when the USA Supreme Court overturned Roe v Wade (and a later planned parenthood case going under the name of Casey), the Court regarded the US constitution in much the same way. But no more. Right wing, religiously inclined judges have decided that a literal view has to be taken towards its interpretation: it was after all adopted in the 18th century when following a religion was a way of life. To illustrate the difficulty inherent in all of this, we should perhaps start with the 14th amendment to USA constitution adopted in 1868. The relevant part says:
1.    … 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.
The majority opinion in Roe v Wade found that the underlined wording meant that a law of privacy existed and that this was sufficient to confer a constitutional right to abortion, at least until the foetus was viable. I’m a lawyer and even I don’t really understand how we go from a requirement for ‘due process’, a concept relating to ensuring that the law is properly applied in every case, to privacy and then onwards to a constitutional right to abortion. I suspect that the reality was that in the early 1970’s, 50 years ago, the Court felt that the time had come for the country’s laws to align themselves with majority opinion created during the swinging sixties, rather than continuing with principles enshrined more than 200 years previously.

In fact it was not just Roe v Wade which depended on the Court’s willingness to be ‘flexible’. This latest judgement putting Roe v Wade to one side itself accepted that, over the years, the Court had recognised rights, rights found to be “implied” by the 14th amendment, that are “deeply rooted in this nation’s history and tradition”. These rights were to be exercised free of government interference - examples included the right to attend desegregated schools, interracial and same-sex marriage, the right to bring up children as parents see fit, and sexual acts conducted in private between consenting adults.

The majority opinion of the Court written by Justice Alito stresses that the judgement relates solely to abortion and no other rights. But, despite this, no-one else can see a distinction between abortion and the various other implied rights arising from the 14th amendment and so no-one really believes him. Professor Laurence Tribe of Harvard Law School calls Alito’s statement “BS”. 

Most legal commentators believe that all implied rights may soon be on the chopping block. It is instructive to note that Alito and his fellow Justice, Clarence Thomas, dissented from the 2015 decision saying that gay marriage was a constitutional right. Following the court’s judgment putting aside Roe v Wade, the US constitution is no longer an evolving, “living” document; it is as dead as a dodo.

Many lawyers consider the judgement to be weak and unconvincing. In support of his judgement, Alito notes that the constitution does not mention abortion - but then it does not mention women either. The constitution was drafted in the 18th century by white males at a time when women did not have the vote or any real status. The 14th amendment was adopted at a time when abortion was mainly illegal and so, it is argued by Alito, no implication that it approved of abortion can be argued for. His judgement even quotes, with approval, the 17th-century chief justice of England and Wales, Sir Matthew Hale, who believed that spousal rape was legally impossible and sentenced women to death as “witches” based on superstition.

But in reality, for Alito and the rest of the majority, the issue is not about law, it is about values dictated by faith and which should have no place in judicial decision making. One of his fellow justices Amy Coney Barrett has said that the Catholic church’s views on prohibiting abortion and euthanasia are “absolute” because these things “take away innocent life.” The majority stance, including that of five Catholic justices, is that life comes into being at the moment of conception, when god provides the fused gametes with a soul. This means therefore that, in their view, the state’s obligation to protect life comes into being at that point. The Pope has spoken, as have many of the leaders of the evangelical churches in the USA.

They, however, have no more authority to tell the country when life begins than anyone else. There is nothing in the Bible about it. The real basic doctrinal divide in the court is whether you read literally an 18th-century document, drafted by white men, in order to uphold a particular religious view, or whether you try to make the law work for people, believing it must develop with changes in society and social attitudes.

But now the Court has decided that the abortion should not be a federal constitutional right, but be left to individual states. And the states are deeply divided on the issue. Abortion is now banned in many states. Politically conservative states - more or less half of those in the US - had ‘trigger legislation’ poised, ready to curtail abortion rights as soon as the decision was handed down. They may also be free to punish health counsellors, taxi drivers, funders and travel agents who facilitate the movement of women to another state where abortion is legal.

No issue of public policy divides Americans more than abortion. Some 54 per cent of the public supports a uniform national rule preserving Roe v Wade in some form; while 28 per cent thought that the ruling should be overturned.
Intriguingly, Texas, that most right-wing of states has, in the aftermath of this decision, decided by referendum to amend its constitution in order to permit abortion. The people have spoken.

And yet Mitch McConnell, the Senate Republican leader, is talking about bringing forward a federal law that would ban abortion nationwide. It could become a reality as early as 2025 if the Republicans retake the White House in 2024, backed by Republican majorities in the House of Representatives and Senate. Are the Republicans copying the Taliban?

From a political and philosophical point of view, it seems that the two sides will never meet. The main counter-argument given to the religious extremists by the ‘Pro-choice’ movement is that woman should have complete choice as to what they do if they become pregnant. This argument falls down, however, because no-one seems
actually to be saying that that choice should remain until full term (except in the case of medical emergency). Instead, most people would accept that there should be a limit.

It is where the limit should be which is where there can be debate – and it mostly centres around whether the embryo is viable. In turn, that implies that the embryo is not endowed with a ‘soul’ until it is viable. Or, as I would prefer to say, more simply: viability is the test.

Of course, with modern medicine, viability comes ever earlier during the pregnancy. But the counter-argument from the right is that even if they were to accept that as a principle, then we would inevitably be on a slippery slope leading towards abortion on demand at any time during pregnancy.

Such an argument is, of course, just a rhetorical device to try to avoid engaging with reality and demanding that ones own views be accepted for ever. It is not so much an argument as a fallacy.

The reality is that when the slippery slope argument is deployed, it means that that the position it seeks to support is inherently very weak or non-existent. If it cannot cling on because of a ‘slippery slope’, then it means simply that the argument is very poorly founded. In turn, that means that support for it may well simply evaporate over time as people start to see things differently - for example as has happened in many countries, including the UK, with regard to homosexuality.

Indeed, now that the opponents of Roe v Wade have had their way, the full extent of the effects of the policy change will become obvious. It may even be that they will thereby have created their own slippery slope. May they slide down it.

Paul Buckingham

30 June 2022

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