An end to American exceptionalism on abortion

National Post, 30 June 2022

The United States was singular in having its foundational constitution interpreted to include a right to abortion

The Dobbs decision of the American Supreme Court, which overturned both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), returns the United States to global normality in abortion policy. Abortion advocates the world over had a stake in America’s exceptional and extreme abortion regime. It made their political case easier, hence the anxiety provoked by its repeal.

In 1973, when the court decided Roe v. Wade, all 50 states had laws regulating abortion. There had been some relaxation of those laws in the decade previous, notably in more populous states. (Canada liberalized its abortion law in 1969.) There was no widespread view, either by the public or in legal circles, that the American constitution guaranteed an abortion right.

Roe struck down the various laws in all 50 states in what dissenting Justice Byron White called an act of “raw judicial power.”

Nearly 20 years later in Casey, the court upheld the “central holding” of Roe but abandoned its constitutional logic and discarded its regulatory framework. In Casey the court appealed most strongly to its own standing, saying that its own “interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate.”

Roe wielded judicial power and Casey begged Americans to accept that assertion of power, lest the court erode its capacity to exercise that power. Unsurprisingly, self-serving circularity did not persuade everyone to go away quietly. The argument at the court raged another 30 years.

Dobbs holds that the American constitution is neutral on abortion, thus states (or the federal congress) can make whatever laws they wish. That is not exactly a pro-life position, just a position that no longer imposes the abortion licence by judicial fiat.

Justice Brett Kavanaugh took pains, writing a separate concurrence, to hammer home the point that the constitution is neutral, neither pro-life or pro-choice. In that he echoed exactly the position of that late monstrous bogeyman of the American abortion lobby, Justice Antonin Scalia.

All that Dobbs does is make the United States like every other democratic country, where elected representatives make decisions about abortion policy with all the compromises that the democratic process entails. The United States was utterly singular in having its foundational constitution interpreted to include a right to abortion. Only utterly among democracies; communist China has a similar abortion regime.

In Canada there is plenty of confusion about our prevailing abortion policy. The 1988 Morgentaler decision struck down the existing 1969 regulatory framework as procedurally unfair.

It did not, very much unlike Roe, establish a constitutional right to abortion. It left it to Parliament to draft a new law that would balance the rights of the mother with the rights of her unborn child. Parliament did not succeed in doing so, and so there has been no law on abortion since.

The only Canadian justice who found a constitutional right to abortion per se was Justice Bertha Wilson. Yet here is what she wrote in Morgentaler about how an abortion law should read:

“In the early stages the woman’s autonomy would be absolute … The state would have no business inquiring into her reasons. Her reasons for having an abortion would, however, be the proper subject of inquiry at the later stages of her pregnancy when the state’s compelling interest in the protection of the foetus would justify it in prescribing conditions. … I leave (that) to the informed judgment of the legislature … It seems to me, however, that it might fall somewhere in the second trimester.”

The Mississippi law under consideration in Dobbs restricted abortion at 15 weeks, the second trimester. For all the howling in Canada about Dobbs, it upheld a law that would have merited respectful consideration by Wilson herself.

Consider France, where some opportunistic legislators have proposed adding abortion rights to the French constitution. Given that French constitutions don’t last long, they likely should just wait for the next one. Nevertheless, what they propose to do is what Dobbs says should be done — legislators should decide.

And what have French legislators decided? The 1975 law permitted abortion on demand until the tenth week of pregnancy. In 2001, the limit was extended to 12 weeks, and just this year a highly contentious debate extended it to 14 weeks. After that, various restrictions apply. Mississippi’s law was 15 weeks, more liberal in some respects than France.

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